- Bookmark
- Share
- CaseIQ
THE WEST BENGAL HOUSING BOARD v. SIPRA BERA AND ORS
High Court at Calcutta — MAT 2414, 2415 & 2416 of 2023 (Decision dated June 10, 2024)
Factual and Procedural Background
The appeals arise from a common impugned judgment and order dated September 25, 2023 in three separate writ petitions. The appellant in each appeal is the West Bengal Housing Board; respondents are several former employees (writ petitioners) who had been granted benefits under a Modified Employees Career Advancement Scheme (MCAS) during their employment.
During retiral processing, the Board took the view that the writ petitioners were not entitled to MCAS benefits for purposes of retiral benefits and withheld the MCAS benefits from the retiral dues. Aggrieved by that action, the writ petitioners filed writ petitions which were disposed of by the single Judge in their favour. The single Judge framed two issues, answered the first issue against the Board (in favour of the writ petitioners), held the second issue to be academic, and directed the Board to reimburse the withheld MCAS benefits. The Board preferred the present appeals challenging that judgment.
When the appeals were taken up, there was an issue of delay in preferring the appeals; for ends of justice the delay was condoned on the basis of averments made in the applications. By consent the appeals were taken up on the record used before the learned Single Judge.
Legal Issues Presented
- Whether the State Government has jurisdiction to issue directions regarding the fixation of conditions of service of the officers and employees of the West Bengal Housing Board under the provisions of the West Bengal Housing Board Act, 1972.
- Whether the amount drawn by the employees in terms of the decision of the West Bengal Housing Board for extension of the benefits of MCAS can be recovered from the writ petitioners from their retirement benefits.
Arguments of the Parties
Appellant's Arguments
- The appellant relied on Sections 12, 21 and 43 of the West Bengal Housing Board Act, 1972, submitting that the Board has power to appoint employees and to regulate their service conditions.
- The appellant drew attention to a communication issued by the Finance Department of the State Government and to actions taken by the Board pursuant to that communication; counsel acknowledged those documents were not on record and sought leave to rely upon them.
- The Board submitted that it accepted the Finance Department's recommendation not to extend MCAS to its employees and that such action should be construed as being within the scope of Section 43 of the 1972 Act (i.e., regulation-making power with prior sanction of the State Government).
- The appellant relied upon the decision State of U.P. and Ors. vs. Virendra Kumar & Ors. (2022 SCC OnLine SC 1628), contending that similar provisions in the Uttar Pradesh statute considered there supported its case and that the impugned judgment should be set aside.
The opinion does not contain a detailed account of the respondents' legal arguments; the record records only that the State and private respondents were represented.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| State of U.P. and Ors. v. Virendra Kumar & Ors., 2022 SCC OnLine SC 1628 | The opinion indicates this Supreme Court decision dealt with similar provisions (in the Uttar Pradesh Avas Evam Vikas Parishad Adhiniyam, 1965) and considered whether the earlier judgment in Preetam Singh's case laid down the correct law. | The appellant relied on Virendra Kumar. The Court noted that the learned Single Judge had considered Virendra Kumar (supra) and that Virendra Kumar answered in the affirmative on the correctness of the Preetam Singh decision. The High Court observed the authorities were considered but, on the facts, found no merit in the appeals. |
| Preetam Singh — 2014 (15) SCC 774 | Referenced as a prior Supreme Court decision that was considered in Virendra Kumar; the provided opinion does not set out the precise rule from Preetam Singh. | The High Court records that Virendra Kumar dealt with whether Preetam Singh laid down the correct law and that Virendra Kumar affirmed it. The opinion does not extract or apply any further specific principle from Preetam Singh beyond recording that it was affirmed by Virendra Kumar. |
Court's Reasoning and Analysis
The Court proceeded in stages:
- Delay: The Court first dealt with the delay in preferring the appeals and, in the interest of justice and on the basis of averments in the applications, condoned the delay and allowed the connected applications for condonation.
- Record and Mode of Hearing: By consent the appeals were taken up on the record that had been used before the learned Single Judge and heard finally on that basis.
- Appellant's Reliance on State Communications: The appellant sought leave to rely upon a Finance Department communication and the Board's action taken pursuant to it; counsel conceded those documents were not on record.
- Statutory Provisions Examined: The Court examined Sections 12, 21 and 43 of the West Bengal Housing Board Act, 1972. It summarized each provision: Section 12 (appointment of certain officers/employees by the Board), Section 21 (budget of the Board to be submitted to the State Government for approval and the State Government's power to return or approve budgets), and Section 43 (power to make regulations, including conditions of service of employees, but with the previous sanction of the State Government and subject to consistency with the Act and rules).
- Budgetary Practice and MCAS: The Court noted that while the writ petitioners were in employment the Board's budget (submitted and approved under Section 21) obviously took into consideration MCAS benefits extended to employees, including the writ petitioners.
- Requirement for Regulation and Prior Sanction: The Court emphasized that Section 43 empowers the Board to make regulations on specified matters but such regulations must (a) be consistent with the Act and rules made thereunder and (b) be made with the previous sanction of the State Government. If the State Government considers it necessary, it may call upon the Board to make regulations or itself make such regulations where the Board fails to do so within the specified time.
- Application of the Statutory Scheme to the Facts: On the materials before it, the appellant (Board) was unable to establish that the service conditions of the writ petitioners were modified so as to withdraw MCAS benefits during their employment by making a regulation consistent with the Act and with the previous sanction of the State Government. In absence of such material, the Board could not invoke Section 43 to justify withholding MCAS benefits already extended to the employees during their employment.
- Consideration of Authority: The Court recorded that the learned Single Judge had considered the Virendra Kumar decision. The High Court also noted that Virendra Kumar dealt with issues including whether the Preetam Singh judgment laid down the correct law and that Virendra Kumar answered that question affirmatively.
- Conclusion of Analysis: Applying the statutory text (Sections 12, 21 and 43), the budgetary practice, and the absence of evidence of a properly sanctioned regulation withdrawing MCAS, the Court found the Board's defence untenable on the facts presented.
Holding and Implications
Holding: All three appeals and connected applications were dismissed. The opinion states, in the Court's words, that "we find no merit in the three appeals" and that "All appeals and connected application... are dismissed without any order as to costs."
Implications:
- Direct Effect on the Parties: The dismissal of the appeals affirms the learned Single Judge's decision directing the West Bengal Housing Board to reimburse the withheld MCAS benefits to the respective writ petitioners (former employees). The Board was unable to establish that it had validly modified service conditions to withdraw MCAS benefits with prior sanction and consistent regulation; hence the withholding was not justified on the record before the Court.
- Broader Precedential Impact: The opinion records that it considered the Virendra Kumar decision (which in turn affirmed the Preetam Singh judgment) but does not purport to lay down any new legal principle beyond applying the statutory scheme to the facts. The Court did not indicate that it was setting any novel binding precedent beyond affirming the result on the facts before it.
This summary is limited to and derived solely from the content of the provided opinion. No information outside the text of the opinion has been added or inferred.
Form No. J (2)
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Debangsu Basak
And
The Hon'ble Justice Md. Shabbar Rashidi MAT 2414 of 2023
with
I.A NO: CAN 1 of 2023
I.A NO: CAN 3 of 2024
The West Bengal Housing Board Vs.
Sital Kumar Biswas & Ors.
with MAT 2415 of 2023
With I.A NO: CAN 1 of 2024 I.A NO: CAN 2 of 2024
The West Bengal Housing Board Vs.
Sekhar Chowdhury & Ors.
With MAT 2416 of 2023
I.A NO: CAN 1 of 2024 I.A NO: CAN 2 of 2024 The West Bengal Housing Board Vs.
Sipra Bera & Ors.
For the Appellant :Mr. Aniruddha Mitra, Mr. Dhilan Sengupta,
Mr. Ayan Chakraborty,
Ms. Sohini Mukherjee,
Mr. Sudipta Mahapatra, Advocates
1
For the respondent /writ petitioner
in MAT 2414 of
2023
:Mr. Soumya Majumder, Mr. Victor Chatterjee, Advocates For the respondent/
writ petitioners in
MAT 2415 of 2023
and MAT 2416 of
2023
: Mr. Arup Kumar Lahiri, Mr. Udayan Datta, Advocates For the State : Mr. Tapan Kumar Mukherjee, Sr adv. Mr. Pinaki Dhole,
Mr. Somnath Naskar,
Mr. Arindam Ghosh, Advocates
Heard & Judgement on : June 10, 2024
DEBANGSU BASAK, J.
1. Three appeals are taken up for analogous consideration as they emanate out of the same impugned judgment and order dated September 25, 2023 passed in three several writ petitions.
2. There is an issue of delay in preferring the appeals. For the ends of justice, the delay in preferring the appeals is condoned on the basis of the averments made in the respective applications. CAN 1 of 2023 in MAT 2414 of 2023 and CAN 1 of 2024 in MAT 2415 of 2023 and MAT 2416 of 2023 are allowed.
3. By consent of the parties, the appeals are taken up for final hearing. All papers used before the learned Single Judge form part of the stay
-2-
application being CAN 3 of 2024 filed in MAT 2414 of 2023. The appeals are heard on the basis of such papers.
4. Learned advocate appearing for the appellant draws the attention of the Court to Sections 12, 21 and 43 of the West Bengal Housing Board Act, 1972. He refers to a communication issued by the Finance Department of the State Government and the action taken by the Board thereon. He, in his usual fairness, points out that, the communication of the Finance Department and the action taken thereon by the Board are not on record. He seeks leave to rely upon them.
5. Referring to the provisions of Sections 12, 21 and 43 of the Act of 1972, learned advocate appearing for the appellant submits that, the appellant is enjoined with the power not only to appoint employees of the Board but also to regulate the service conditions of such employees. He submits that, the Board in exercise of such powers, accepted the recommendations of the Finance Department not to extend modified Employees Career Advancement Scheme (MCAS) to its employees. He submits that, such action of the Board should be construed to be in terms of Section 43 of the Act of 1972.
6. Learned advocate appearing for the appellant relies upon 2022 SCC OnLine SC 1628 [ State of U.P. and Ors. vs. Virendra Kumar & Ors.]
and submits that, similar provisions of the Act of 1972 appearing in Uttar Pradesh Avas Evam Vikas Parishad Adhiniyam, 1965 were considered by the Supreme Court. He submits that impugned judgment and order should be set aside.
7. State and the private respondent/writ petitioners are represented.
8. Writ petitioners were employees of the Board. In course of their employment they enjoyed MCAS. On superannuation, the issue as to their
-3-
retiral benefits came up for consideration when the Board took the view that the writ petitioners were not entitled to MCAS benefits which they enjoyed during their employment. The Board proceeded to withhold the benefits of MCAS granted to the writ petitioners from the retiral benefits receivable by them.
9. Aggrieved by such action of the appellant, the writ petitioners filed three several writ petitions which were disposed of by the impugned judgment and order.
10. The single Judge framed two issues for consideration which are as follows: -
"(i) Whether the State Government has jurisdiction to issue directions regarding the fixation of conditions of service of the officers and employees of the West Bengal Housing Board under the provisions of the 1972 Act. If the answer to the said issue is in the affirmative, the next issue that would arise for consideration is -
(ii) Whether the amount drawn by the employees in terms of the decision of the West Bengal Housing Board for extension of the benefits of MCAS, 01 can be recovered from the writ petitioners from their retirement benefits."
11. Learned single Judge considered the factual matrix of the case as also the authorities cited before him. Learned single Judge answered the first issue in the negative as against the appellant and in favour of the private respondents. The second issue was answered by holding that in view of the first issue being answered in the manner as done, the second issue became academic.
-4-
12. In such circumstances, the learned single Judge proceeded to direct the appellant to reimburse the withheld MCAS benefits to the writ petitioners.
13. Both the issues as noted by the learned single Judge fall for consideration before us.
14. Sections 12, 21 and 43 of the Act of 1972 are as follows :-
"12. (1) The Board shall have a Housing Commissioner, who shall be the Chief Executive Officer * * * * and such other officers and employees as the Board may consider necessary for the efficient performance of its functions.
21. (1) Every budget sanctioned by the Board shall be submitted to the State Government for approval. [Within such time as may be prescribed,] the State Government may approve the budget as sanctioned by the Board or return it to the Board for making such modifications therein as the State Government may deem fit.
(2) Where a budget is returned to the Board by the State Government for making any modifications therein, the Board shall forthwith make such modifications and submit the budget as so modified to the State Government, which may then approve the same.
43. (1) The Board may from time to time, with the previous sanction of the State Government, make regulations consistent with this Act and with any rules made under this Act.
(2) Such regulations may provide for-
(a) the management and use of buildings constructed under any housing scheme;
-5-
(b) the principles to be followed in allotment of tenements and premises;
(c) regulating its procedure and the disposal of its business;
(d) the conditions of service of the employees of the Board other than those taken over and employed under sub- section (1) of section 13.
(3) If it appears to the State Government that it is necessary or desirable for carrying out the purposes of this Act to make any regulation in respect of matters specified in sub-section (2) or to amend any regulation made under the sub-section, it may call upon the Board to make such regulation or amendment within such time as it may specify. If the Board fails to make such regulation or amendment within the time specified, the State Government may itself make such regulation or amendment and the regulation or the amendment so made shall be deemed to have been made by the Board under sub-section (1)."
15. Section 12 of the Act of 1972 deals with powers of appointment of certain specified grade of employees by the Board. Section 21 of the Act of 1972 deals with the budgetary provisions of the Board while Section 43 empowers the Board to make regulations in the fields specified in sub- Section (2) thereof.
16. The facts of the present case do not revolve around appointment of the writ petitioners. The issue is with regard to the entitlement of receipt of MCAS by the writ petitioners during their employment.
17. While the writ petitioners were in employment, from time to time, Board prepared its budget and sought approval from the State, in terms of
-6-
Section 21 of the Act of 1972. In response to the query of the Court, learned advocate for the appellant submits that, the budget of the appellant obviously took into consideration the MCAS benefits extended to the employees of the appellant including the writ petitioners.
18. Considering the first issue from the perspective of Section 21 of the Act of 1972, it can be said that, the appellant was employed by the State Government while State Government sanctioned the budgetary provisions of the appellant, year after year to extend MCAS benefits to its employees of the appellant including the writ petitioners.
19. Section 43 of the Act of 1972 empowers the appellant to make regulations and Rules relating to the areas specified in sub-Section (2) thereof. However, such regulations and Rules must be consistent with the Act of 1972 and the Rules made thereunder. Moreover, the appellant may make such regulations with the previous sanction of the Act of the State Government.
20. In the facts and circumstances of the present case, appellant is unable to establish that the service conditions of the writ petitioners were modified so as to withdraw MCAS benefits extended to them, during their employment with the previous sanction of the State Government by making a regulation consistent with the Act of 1972. In absence of such materials being placed, appellant cannot be allowed to contend that it can take shelter under Section 43 of the Act of 1972, for the purpose of withholding MCAS benefits already extended to the writ petitioners, during their employment.
21. Learned single Judge, considered Virendra Kumar (supra) cited before us. Virendra Kumat (supra) deals with three issues including the issue whether the, judgment of the Supreme Court in Preetam Singh's
-7-
case 2014 (15) SCC 774 laid down the correct law or not. It answered such question in the affirmative.
22. In view of the discussions above, we find no merit in the three appeals.
23. All appeals and connected application being CAN 3 of 2024 in MAT 2414 of 2023 and CAN 2 of 2024 in MAT 2415 of 2023 and MAT 2416 of 2023 are dismissed without any order as to costs.
(Debangsu Basak, J.)
24. I Agree.
(Md. Shabbar Rashidi, J.)
Dd
-8-
Alert